The New Law on Sexual Assault and Rape in Germany

The New Law on Sexual Assault and Rape in Germany Date: 2 November 2023 Overview Consent: models how to conceptualize consent; different solutions in European countries Core features of German law : "no means no"; additional cases of sexual assault if "no" could not or need not be expressed Mens rea rules are important Positive sexual autonomy: interests of mentally handicapped adults Relevance of errors by the person who gives consent Six Models How to Conceptualize "Consent" In Substantive Criminal Law 1. Pure attitudinal model 1: inner approval, communication not necessary 2. Pure attitudinal model 2: inner disapproval, communication not necessary 3. Mixed model 1: inner approval plus expression of approval ("only yes means yes") 4. Mixed model 2: inner disapproval plus expression of disapproval ("no means no") 5. Pure communicative model 1: expression of approval, no inquiry into victims' mental state ("only yes means yes", version 2) 6. Pure communicative model 2: expression of disapproval, no inquiry into victims' mental state ("no means no", version 2) From Models to Drafting Criminal Laws  It is not a good idea to use the words "consent" and "lack of consent" in a criminal statute, also "agrees" is not optimal. Statutes should ideally leave no doubts about the underlying model.  To keep in mind: statutory offense descriptions contain both norms of conduct for every citizen and norms for retrospective assessment Consent-Based Offense Descriptions  Sweden: close to anattitudinal model; see Swedish Criminal Code, Chapter 6, Sect. 1, 2, 2018: "with a person who is not participating voluntarily", in the following sentence "when assessing whether participation is voluntary or not, particular consideration is given to whether voluntariness was expressed by word or deed or in some other way."  Spain: "only yes means yes" introduced in 2022; Art. 178 Spanish Criminal Code: "Whoever commits any act against the sexual autonomy of another person without his/her consent, shall be punished, as responsible of sexual assault... There will be understood that consent is present only when it has been manifested freely by acts that, the circumstances of the act considered, express clearly the person's will." §177 German Criminal Code Since 2016: "No means no", mixed model: § 177 Abs. 1 StGB: Whoever,against a person's discernible will, performs sexual acts on that person or has that person perform sexual acts on them, or causes that person to perform. § 177 Abs. 2 StGB: incurs the same penalty if: 1. The offender exploits the fact that the person is not able to form or express a contrary will, 2. The offender exploits the fact that the person is significantly impaired in respect of the ability to form or express a will due to said person's physical or mental condition, unless the offender has obtained the consent of that person, 3. The offender exploits an element of surprise, 4. The offender exploits a situation in which the victim is threatened with serious harm in case of offering resistance or 5. The offender has coerced the person to perform or acquiesce to the sexual acts by threatening serious harm. Models Of Consent and Mens Rea Attitudinal model can lead to problematic outcomes if intent is required and rules of errors are entirely subjective (Germany and Spain). Problem can be solved with a "reasonable person"-filter (Sexual Offenses Act 2003 England and Wales) or the Swedish solution (separate offense in the case of a grossly negligent error). Positive Sexual Autonomy Or Quality Of Life Unavoidable tension between protecting adults against exploitation and their interest in having intimate relations - laws should not be too protective. Innovative solution in § 177 Abs. 2 Nr. 2 StGB: incurs the same penalty if the offender exploits the fact that the person is significantly impaired in respect of the ability to form or express a will due to said person's physical or mental condition, unless the offender has obtained the consent of that person. For this special case: "only yes means yes"-rule has been chosen. Errors By the Person Expressing Approval Other than sect. 76 Sexual Offenses Act 2003, German law does not mention deceptions or other errors at all; nor do Swedish or Spanish law. Questions of interpretation which errors make sexual contact "against the will" or "no voluntary". German Court of Justice: error is relevant if the sexual act is a different act than the one agreed upon (removal of condom, judgment Dec. 13, 2022). German criminal law scholars mainly agree that other errors are irrelevant.